United States: Hot Topics in Digital Advertising – Guidance for In-House Counsel

Last Updated: July 30 2019


  • Platform Compliance
  • FTC: Dot Com Disclosures and Endorsements
  • IP Implication of Posting/Sharing Third Party Content in Social Media
  • Privacy

Topic 1
Social Media Platform Term Compliance

In a Nutshell: Social Media Platform Terms

  • Users must meet age requirements
    • 13+ on Facebook, Twitter, Instagram, and Pinterest
    • 17+ on Vine and 18+ on Snapchat
  • Users are responsible for content they post
  • Don’t suggest an affiliation with the platform
  • Comply with the law
  • Get permission to use material off platform
  • No inappropriate content (e.g., infringing material, violence, hate speech, spam)

How Can I Interact With Users?

  • Terms prohibit use of functionality to send junk mail, duplicative comments, or unsolicited offers
    – Interactions should be meaningful and genuine
  • Consider whether communications permitted by the platforms may infringe a user’s rights
    – Platform terms may not give you the rights you need
  • Remember that content that’s been shared remains public after you’ve deleted it
  • Tension between what platforms technically allow and potential right of publicity issues
    – Do @mentions violate a user’s rights?

Interaction - Facebook

  • Official page
    – Respond to comments, answer questions, and solicit feedback
  • Direct messaging
    – Brands cannot direct message users unless they contact the brand first

Interaction - Instagram

  • Main interaction through comments
    – All comments are public
  • No “sharing” functionality of posted content
  • Sharing occurs through screenshots, cropping, and reposting
    – Violates Instagram terms

User-Generated Content (UGC) – Across Platforms

  • Users retain ownership of UGC
  • Platforms obtain a broad license to use UGC
  • Platforms say they give various licenses to use content in different ways, subject to varying terms
  • Users represent that UGC is non-infringing

UGC – Reuse UGC Off-Platform?

  • Does the user who posted the UGC likely have all of the rights to give?
  • How do you get the rights?
    – From the platform?
    – From the user?
  • What usage (without permission) will be tolerated?

In A Nutshell: Use of Platform Brand Assets

  • Don’t modify or use them in a confusing way
  • Don’t falsely suggest sponsorship or affiliation
  • Some sites require a non-association disclaimer
  • Don’t use trademarks in the name of the product or the promotion
  • Use the platform’s marks less prominently than your own marks

Topic 2
FTC: Dot Com Disclosures and Endorsements

FTC’s Dot Com Guidance

  • .com Disclosures: How to Make Effective Disclosures in Digital Advertising
  • Released in March 2013
  • Updates guidance released in 2000

Guidance clarifies that…

  • Consumer protection laws governing advertising apply equally to marketers in both traditional and digital media.
  • Any disclosures necessary to make a claim truthful and adequately substantiated for a reasonable consumer must be clear and conspicuous, even if the space for them is limited by the medium.
  • In addition, such disclosures must be made before consumers make a decision to buy.

Significant Watch-outs

  • Because consumers don't necessarily enter a website at the homepage or any particular page, it may be necessary to repeat disclosures related to a claim or offer several times. Moreover, the disclosures must be "unavoidable" and should appear before a consumer gets to the order screen.


  • Hyperlinks, where appropriate for disclosures, must be explicitly labeled; use of "disclosures" or "terms" or, even, "important information" may not be adequate.

Optimizing for mobile

  • Because of the small screens on smart phones (and some tablets), and the need to zoom in on copy to make it legible on the smaller screen, consumers may miss necessary disclosures. Therefore, optimizing websites for mobile devices should be done as a matter of course.
  • Beware of horizontal scrolling.

Technological limitations

  • Advertisers must be aware of technological limitations when considering whether a technique is appropriate for providing disclosures. For example, pop-ups can be prevented from appearing by pop-up blocking software and mouse-overs may not work in the mobile environment.

Space-constrained ads

  • Short-form disclosures in space-constrained ads, such as on Twitter or Facebook, may not be adequate. Advertisers may need to gather empirical evidence to show that abbreviations and icons work in communicating required disclosures to consumers.

FTC Letter to Search Engines: Key Recommendations

  • Search engines must ensure that any labels and visual cues used to distinguish advertising from natural search results are sufficiently noticeable and understandable to consumers.
  • In distinguishing top ads or other advertising results integrated into the natural search results, search engines should use: (1) more prominent shading that has a clear outline; (2) a prominent border that distinctly sets off advertising from the natural search results; or (3) both prominent shading and a border.
  • In addition to the visual cues a search engine may use to distinguish advertising, paid search results should have a text label that: (1) uses language that explicitly and unambiguously conveys whether a search result is advertising; (2) is large and visible enough for consumers to notice it; and (3) is located near the search result (or group of search results) that it qualifies and where consumers will see it.
  • Because consumers may not notice labels in the top right-hand corner of the shaded area or "ad blocks," search engines should place any text label used to distinguish advertising results immediately in front of an advertising result, or in the upper left-hand corner of an ad block, including any grouping of paid specialized results, in adequately sized and colored font.
  • Any cues used to indicate that search results were sponsored by an advertiser must be "sufficiently visible on both mobile devices and desktop computers."

The Endorsement Guides

  • Guides Concerning the use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255)
  • Promulgated in 1975
  • Last revised in 1980
  • In 2007, FTC began its review
  • Revisions announced in October 2009

Key Update: Disclosure of Material Connections

  • Connections between the endorser and the advertiser, which might materially affect the weight or credibility of the endorsement, should be clearly and conspicuously disclosed
  • Connections that are “not reasonably expected by the audience”


  • No disclosure of material connection is generally required in traditional media or on websites with similar content
  • On Facebook, you should disclose the connection with each post
  • Celebrities should still disclose the connection, even if they are a well-known spokesperson for the product
  • A single disclosure on a home page that says that products may be provided for free, or a button that says “disclosure,” is generally not sufficient disclosure
  • On Twitter, use disclosures such as “#paid ad,” “#paid,” and “#ad”

#Hotwater with FTC: Ann Taylor

  • FTC was concerned that the bloggers failed to disclose that they received gifts (2010)
  • FTC decides not to bring enforcement action
    – It was the first and only preview event
    – Only a few bloggers posted content, and some disclosed the gifts
    – A sign was posted at the event telling bloggers to disclose the gifts
    – Afterwards, Ann Taylor adopted a written policy on blogger disclosures

#Hotwater with FTC: Cole Haan

  • Cole Haan’s #WanderingSole Pinterest contest required entrants to pin 5 photos of shoes
  • FTC: These are endorsements and consumers won’t know that entrants were incentivized to pin– #WanderingSole won’t work!
  • FTC doesn’t pursue b/c this is new issue, contest short with few entries, and Cole Haan enacts new social media policy

#Hotwater with FTC: ADT

  • Security company’s "experts" were featured on numerous high-profile TV and radio shows, and across the internet in articles and blog posts. Although ADT allegedly booked the experts' appearances through its public relations firms and booking agents - and even provided the media with B-roll footage and questions for the interviews - few segments mentioned the experts' connection with ADT.
  • FTC says relationship must be disclosed and settles action with ADT requiring clear and prominent disclosures.
  • FTC also investigates actions of the intermediaries in this arrangement, the public relations firm, the advertising network that published the blog posts, the booking agency and even one of the experts herself. Closing letters issued.

Topic 3
IP Implications of Posting/Sharing Third Party Content in Social Media
Is the sky really falling?

Rights Clearance & Social Media

  1. Do I need permission?
  2. Do I have permission –based on the “permission infrastructure” of the social media platform?
  3. Is the permission I have robust enough to cover what I’m doing?



Law Coverage
Right of Publicity The name, likeness, photograph, voice, identity, and “persona” of any person living (and in many places dead).
Copyright Any creative material fixed in a tangible medium of expression.
Trademark Words, logos, symbols, taglines (and possibly other things) that are used to identify the source of goods or services.

Do I need permission?

  • Every use presumptively needs permission
  • Linking vs. Copying
    Perfect 10 v. Amazon (9th Cir. 2007) (the “server test”)
    FlavaWorks v. Gunter (7th Cir. 2012)
  • Fair Use
  • Likelihood of Confusion
  • Classic Fair Use
  • Nominative Fair Use
  • Free Speech / Parody

Right of Publicity: Is it a Commercial Use?
Blurred Lines

  • The lines between advertising and editorial content have always been blurry.
  • This matters because the rules that apply to advertising are different from those that apply to editorial content.
    – Rights Clearance (esp. Right of Publicity)
    – (Also False Advertising!)
  • The law is a tortoise; technology, a hare.

Practical Questions

  • Who is the speaker? The brand!
  • Who is the audience? The customer?
  • What is the purpose? To build the brand’s image and sell products?
  • Who controls it? The CMO?
  • Who pays for it? Does it come out of the marketing budget?
  • Is it objective? Yeah. Right.

But I don’t even mention a product!
Jordan v. Jewel Food Stores (7th Cir. 2014)

  • Image advertising = advertising
  • Does the speaker have an economic motive?
  • “Jewel’s ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers. This commercial message is implicit but easily inferred, and is the dominant one.”

Right of Publicity vs. First Amendment

  • At least 8 different balancing tests, including:
    – Transformative
    – Predominant Purpose
    – Rogers v. Grimaldi
    – Real Relationship

Do I have permission?

  • Directly from the rights holder?
  • From users via the Social Media Platform’s TOS (and other terms, policies, guidelines)?
  • Users of social media sites grant broad rights to the social media platform, and the platform grants broad rights to developers:
  • Despite terms/policies, some users may not understand that their content can be used in a commercial context.
  • TOS/Developer Guidelines NOT always so clear:
    – Twitter API TOS allow use of tweets “in advertisements, not as advertisements”

Is the permission robust enough?

“Creative Commons licenses do not waive or otherwise affect rights of privacy or publicity to the extent they apply. If you have created a work or wish to use a work that might in some way implicate these rights, you may need to obtain permission from the individuals whose rights may be affected.”

(Creative Commons FAQs)

Topic 4
Privacy Update

  • COPPA was updated in 2013
    – Photos and geolocation are now PII
    – Mixed audience sites can no longer just screen out children with terms.

CalOPPA Updated

  • Websites must state how they respond to “do not track signals.”
  • Disclose if the website participates in tracking users across websites using third parties.

Key International Points

  • Canada has CASL – Opt-In only marketing emails.
  • EU/US Safe Harbor seeing enforcement and rising importance.
This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Other United States Advice Centres
Useful Resources
Under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based.
The SBA's resources on Truth-in-Advertising Laws.
Do you know the buzz words that may be a tip-off to a rip-off?
Upcoming Events
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions